Standards of Review: The ABCA Weighs In

Catalyst has not (yet) proved to be catalytic. It has not been applied to delegated legislation or decisions taken by other elected bodies. I unhesitatingly concede that Canadian courts have treated Catalyst as yet another example of reasonableness being a single standard that takes its colour from its context. Had McLachlin C.J. said only this, there would be no debate.

But she added the following at para. 24: “The applicable test is this: only if the bylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside”. I will leave it to readers to decide who has the better reading of Catalyst — bearing in mind that in the common law tradition old cases rarely die, so that if ever Canadian administrative law is reformulated, Catalyst may yet play an important role.

Is this another example of reasonableness taking different colours in different contexts? Or is it a further example of Canadian courts attempting to define standards of review beyond the binary choice between correctness and reasonableness in order to respond coherently to the challenge of reviewing the full galaxy of administrative decision-makers?

The Alberta Court of Appeal’s approach evokes Evans J.A.’s suggestion in Re:Sound, 2014 FCA 48 that “weight” should be accorded to administrative decision-makers’ procedural fairness determinations. Stratas J.A. responded that this “would be like describing a car as stationary but moving” (Maritime Broadcasting, 2014 FCA 59, at para. 60).